Date: 20010213
Docket: IMM-2223-00
Neutral Citation: 2001 FCT 63
BETWEEN:
VALERIY OREL
NURZHAMAL MIRKARIMOVA
ANNA OREL
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicants are citizens of Kazakhstan. Valeriy Orel is an ethnic Russian who claims to subscribe to the Orthodox religion. His spouse Nurzhamal Mirkarimova is an ethnic Kasakh who claims to have converted from Islam and now espouses the Russian Orthodox faith, as does the couple's 12-year old daughter Anna Orel.
[2] In 1997, the applicants were determined not to be Convention refugees. Their claims for refugee status were found not to have a credible basis.
[3] In November 1998, their application for leave for judicial review of this first decision by the Convention Refugee Determination Division was dismissed by the Trial Division of this Court.
[4] On December 30, 1998, the applicants left Canada for the United States.
[5] On April 7, 1999, they returned to this country and renewed their claims for Convention refugee status, as provided for under subsection 46.01(5) of the Immigration Act, R.S.C. 1985, c. I-2.
[6] This proceeding is the application for judicial review of the determination by the second panel of the C.R.D.D. that the applicants are not Convention refugees.
[7] The second panel applied its understanding of the decisions in Vasquez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. Nos. 1340 and 1769 (QL) (T.D.), in ruling that its hearing would be limited to new facts which occurred since the first negative determination. Counsel for the applicants acknowledged that he did not object in any serious way to the tribunal's view as to the evidence it would admit in the second refugee hearing. Counsel also acknowledged that the tribunal did not limit the scope of the questioning concerning the refugee claim of the minor applicant Anna Orel which was the principal focus of the second hearing.
[8] Accordingly, the applicants did not pursue in their oral submissions any of their written arguments concerning res judicata. In any event, in my view, the procedure followed by the tribunal was consistent with its mandate under subsections 68(2) and (3) of the Immigration Act and Rule 39 of the Convention Refugee Determination Division Rules, SOR/93-45, which provide the Refugee Division with discretion concerning the informality of its proceedings and the application of the rules of evidence necessary for a full, proper and fair hearing.
[9] The principal issue in the second hearing was the refugee claim of Anna Orel. After receiving the submissions of the applicants' counsel concerning Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the panel received oral and documentary evidence concerning the potential plight of the minor claimant Anna Orel.
[10] The tribunal allowed the applicants' request to file documentary evidence and submissions subsequent to the hearing. Counsel had indicated that the supplementary evidence might include an expert opinion.
[11] As they were authorized to do, the applicants filed the opinion and curriculum vitae of a university professor, born and educated in Russia and currently teaching in Canada. He is now specializing in post-Communist studies and while his curriculum vitae makes no reference to Kazakhstan, he does describe himself as specializing in the province of post-Soviet states, including Kazakhstan.
[12] His report is a general overview of the conditions encountered by Russians at the hands of extreme nationalist Kazakh groups. He refers to ethnic Russian students being at a special disadvantage in Kazakhstan and added that the possibilities of discrimination are even worst for someone of mixed Russian-Kazakh ethnicity, such as the minor applicant Anna Orel. In his final statement, he noted: "In particular, Anna's right to education is certain to be grossly impaired, disadvantaging her severely as she grows up."
[13] In its decision, the tribunal concluded as follows:
| The evidence, which includes the written opinion of an associate professor ..., who [sic] I do not accept as an expert4, does not show that the core human rights of ethnic minorities in Kazakhstan, including persons similarly situated to the minor claimant, are systematically compromised and that Kazakhstan does not have in place available if imperfect avenues of legal redress. [Emphasis added.] |
| 4 The opinion was considered post-hearing, but had not been made available at the hearing nor was the professor himself proferred [sic] for examination. |
[14] The tribunal's comment that the professor was not an expert concerning the conditions that Anna Orel would face in her primary and secondary education upon her return to Kazakhstan is not particularly significant. The applicants did not ask that the professor testify before the panel: R. v. Mohan, [1994] 2 S.C.R. 9, at paragraph 27. Also, regardless of the professor's status as "an expert", the tribunal did take into account his report as part of the country and other documentary evidence it considered.
[15] The tribunal also reviewed the testimony of Nurzhamal Mirkarimova concerning what she characterized as the worsening country conditions in Kazakhstan, particularly with respect to her daughter Anna and her ability to register in secondary schools. However, the panel members concluded that the discrimination existing against ethnic minorities in Kazakhstan, including persons similarly situated to Anna Orel, did not constitute persecution. The tribunal's decision in this regard discloses no reviewable error.
[16] The tribunal's use of the word "systematically" does not, as suggested by counsel for the applicants, disclose a misunderstanding of the threshold required to establish persecution. On my reading of its reasons, the tribunal understood the evidence as establishing discrimination which, when considered on an individual or collective basis, does not constitute persecution. Such an interpretation would not be inconsistent with the applicants' evidence.
[17] In Ali v. Canada (Minister of Citizenship and Immigration) (1996), 36 Imm. L.R. (2d) 34, Justice McKeown noted that education is a basic human right. He made this statement to rebut the reasoning in the decision under review that as an uneducated Afghani child, the only way the minor applicant in that case could avoid being persecuted was to refuse to attend school. The decision in Ali is fact specific and is of no assistance to the applicants in this proceeding.
[18] For these reasons, this application for judicial review will be dismissed.
[19] The applicants proposed two certified questions. For the reasons set out in the respondent's submissions, I decline to certify either question. Both questions assume that the panel found that the discrimination Anna Orel might face in Kazakhstan's education system was evidence of persecution. As noted earlier in these reasons, the tribunal's decision did not find that the evidence of discrimination amounted to persecution.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
February 13, 2001